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HomeMy WebLinkAbout5A3 Development Agreement & Resolution No. 3675 (Beacon Heights) - SignedSouth Bend Redevelopment Commission 215 S. Dr. Martin Luther King, Jr. Blvd., Room 301, South Bend, Indiana Redevelopment Commission Agenda Item D ATE : 7.2.26 FROM: Joseph Molnar, Deputy Director Department of Community Investment SUBJECT: Beacon Heights Renovation – Development Agreement / Resolution Funding Source* (circle) River West; River East; South Side; Douglas Road; West Washington; RDC General; Riv. East Res. * Funds are subject to the City Controller's determination of availability; if funds are unavailable, as solely determined by the City Controller, then the authorization of the expenditure of such funds shall be void and of no effect. PURPOSE OF REQUEST: Approval of the Development Agreement and Resolution No. 3675 to fund an EDC Loan in the amount of $1.25M for the Renovation of Beacon Heights SPECIFICS: Beacon Heights is an existing affordable apartment complex with approximately 174 housing units on the west side of the City of South Bend with a primary address of 3401 Ardmore Trail. The complex was constructed in the mid-1940s and has served as affordable housing for the South Bend community for decades. The property is in need of improvements both to the housing units and the common spaces. L+M Development Partners has entered into an agreement to purchase the property from the existing owner and is in the process of receiving Low Income Housing Tax Credits from the Indiana Housing and Community Development Authority. L+M has established an Indiana based LLC – Beacon Apartments Preservation, LLC – to manage and renovate the property. The planned redevelopment represents an approximate $47 million private investment to fully renovate all existing housing units on the property, ensuring long-term affordability and improving living conditions for residents. Critically, the project will proceed as a "renovation in place," meaning no current residents will be displaced during construction. The Beacon Heights Project directly supports the City’s mission to advance neighborhood revitalization and expand and preserve affordable housing opportunities within the City. The project will: •Preserve and improve an existing affordable housing community •Leverage substantial private investment into the River West Development Area •Maintain long-term affordability through LIHTC financing •Improve housing quality without displacing existing residents ______________ ___________Pres/V-Pres ATTEST: __________ _______ _ Date: _____________ _______ APPROVED Not Approved SOUTH BEND REDEVELOPMENT COMMISSION July 9, 2026  South Bend Redevelopment Commission 215 S. Dr. Martin Luther King, Jr. Blvd., Room 301, South Bend, Indiana Previously the RDC at the 6/11/26 approved up to $1.25M in River West TIF revenues to fund the EDC loan. Subsequently, the Economic Development Corporation and the Common Council have also approved their necessary steps for full approval of the EDC loan. The Redevelopment Commission must hold a final public hearing prior to voting on the Resolution. The proposed Development Agreement and Resolution are the final approval steps to authorize the loan. $1,250,000 in River West TIF revenues, subject to appropriation, to fund an EDC Loan supporting the project. No TIF funds will be disbursed until the acquisition of the property by L+M Development Partners (through Beacon Apartments Preservation, LLC) is successfully completed. Staff recommend approval of the Development Agreement and Resolution. 1 DEVELOPMENT AGREEMENT This Development Agreement (this “Agreement”), is effective as of July 31, 2026 (the “Effective Date”), by and between the City of South Bend, Department of Redevelopment, acting by and through its governing body, the South Bend Redevelopment Commission (the “Commission”), and Beacon Apartments Preservation LLC, an Indiana limited liability company with registered offices at 2 Park Avenue, 23rd Floor New York, NY 10016 (the “Developer”) (each, a “Party,” and collectively, the “Parties”). RECITALS WHEREAS, the Commission exists and operates under the provisions of the Redevelopment of Cities and Towns Act of 1953, as amended (I.C. 36-7-14 et seq., the “Act”); and WHEREAS, the Act provides that the clearance, replanning, and redevelopment of redevelopment areas are public uses and purposes for which public money may be spent; and WHEREAS, the Developer is a real estate development firm focused primarily on affordable and mixed-income housing with a mission to provide quality housing projects; and WHEREAS, the Developer owns certain real property in the City of South Bend, Indiana (the “City”), described in Exhibit A, together with all fixtures, easements, appurtenances, hereditaments, rights, powers, privileges, and other improvements there on and/or appurtenant thereto (the “Developer Property”); and WHEREAS, the Developer currently has private financing and desires to construct, renovate, or otherwise rehabilitate certain elements of the Developer Property (the “Project”) in accordance with the project plan (the “Project Plan”) attached hereto as Exhibit B; and WHEREAS, the Developer Property is located within the corporate boundaries of the City, within the River West Development Area or areas serving the River West Development Area (the “Area”); and WHEREAS, the Commission has adopted (and subsequently amended, from time to time) a development plan, which contemplates development of the Area consistent with the Project; and WHEREAS, the City is committed to supporting the development, rehabilitation, and preservation of affordable housing in South Bend; and WHEREAS, the Project will rehabilitate approximately 174 affordable rental units, and the Project will contribute to the revitalization of the surrounding area and add vibrancy to the neighborhood; and WHEREAS, the Commission believes that accomplishing the Project as described herein is in the best interests of the health, safety, and welfare of the City and its residents; and 2 WHEREAS, the Commission desires to facilitate and assist the Project by undertaking to simultaneously reimburse the City for its costs incurred or to be incurred in providing a loan pursuant to a certain Financing and Loan Agreement (the “Loan Agreement”) that the Parties anticipate the Developer and the City executing pursuant to Indiana Code 36-7-12 to fund in part certain local public improvements stated in Exhibit C (the “Local Public Improvements”) in accordance with the Act, subject to the terms and conditions of this Agreement and that certain Loan Agreement. NOW, THEREFORE, in consideration of the mutual promises and obligations stated in this Agreement, the adequacy of which is hereby acknowledged, the Parties agree as follows: SECTION 1. DEFINITIONS. Unless otherwise defined in this Agreement, capitalized terms used in this Agreement have the following meanings: 1.1 Assessed Value. “Assessed Value” means the market value-in-use of a property, used for property tax assessment purposes as determined by the St. Joseph County Assessor. 1.2 Funding Amount. “Funding Amount” means an amount not to exceed One Million Two Hundred Fifty Thousand Dollars ($1,250,000.00) consisting of tax increment finance revenues to be provided to the City by the Commission, to simultaneously reimburse the City for its costs incurred, or to be incurred through the Loan Agreement that will be subsequently executed by the Parties, to make the Loan pursuant to the terms of the Loan Agreement, which will be used for paying a portion of the costs associated with the construction, equipping, inspection, and delivery of the Local Public Improvements. 1.3 Private Investment. “Private Investment” means an amount no less than Forty- Seven Million Dollars ($47,000,000.00) to be expended by the Developer for the costs associated with constructing the improvements set forth in the Project Plan, including architectural, engineering, and any other costs directly related to completion of the Project that are expected to contribute to increases in the Assessed Value of the Developer Property. For the avoidance of doubt, “Private Investment” shall include any and all sources of financing for the Project other than the Funding Amount from the City. SECTION 2. INTERPRETATION, TERMS, AND RECITALS. 2.1 Interpretation. (a)The terms “herein,” “hereto,” “hereunder,” and all terms of similar import shall be deemed to refer to this Agreement as a whole rather than to any Article of, Section of, or Exhibit to this Agreement. (b)Unless otherwise specified, references in this Agreement to (i) “Section” or “Article” shall be deemed to refer to the Section or Article of this Agreement bearing the number so specified, (ii) “Exhibit” shall be deemed to refer to the Exhibit of this Agreement bearing the letter or number so specified, and (iii) references to this “Agreement” shall mean this Agreement and any exhibits and attachments hereto. 3 (c)Captions used for or in Sections, Articles, and Exhibits of this Agreement are for convenience of reference only and shall not affect the construction of this Agreement. (d)The terms “include,” “including,” and “such as” shall each be construed as if followed by the phrase “without being limited to.” 2.2 Recitals. The Recitals set forth above are incorporated into and are a part of this Agreement for all purposes. SECTION 3. DEVELOPER’S OBLIGATIONS. 3.1 Generally. The Parties acknowledge and agree that the Commission’s agreements to perform and abide by the covenants and obligations set forth in this Agreement are material consideration for the Developer’s commitment to perform and abide by the covenants and obligations of the Developer contained in this Agreement. The Parties further acknowledge and agree that the Developer’s obligations under this Agreement are hereby conditioned upon the execution and closing of the Loan Agreement. In the event that subsequent negotiations by the Parties do not result in an executed Loan Agreement by December 31, 2026, this Agreement shall become null and void. 3.2 The Project. (a) The Developer will perform or shall cause to be performed all necessary work to complete the improvements set forth in the Project Plan attached hereto as Exhibit B and the plans and specifications approved by the City Planner, or his designee, pursuant to Section 3.5 (“Plans and Specifications for Project”) of this Agreement, which improvements shall comply in all material respects with all applicable zoning and land use laws and ordinances. (b)The Developer will expend the Private Investment to complete the Project in accordance with the Project Plan attached hereto as Exhibit B and the Plans and Specifications for Project of this Agreement. 3.3 Timeframe for Completion. Subject to the Unavoidable Delay provisions of Section 7.12 of the Loan Agreement and the Force Majeure provisions of Section 6.2 of this Agreement, the Developer hereby agrees to complete the Project as set forth in the Project Plan attached hereto as Exhibit B and any other obligations the Developer may have under this Agreement by December 31, 2029, or otherwise agreed between the Developer and the Commission, as may be modified due to unforeseen circumstances and delays (the “Mandatory Project Completion Date”). Notwithstanding Section 6.1 of this Agreement to the contrary, the Developer’s failure to complete the Project substantially in accordance with the terms hereof, expend the Private Investment as needed to complete the Project, or substantially fulfill any other material obligations the Developer may have under this Agreement by the Mandatory Project Completion Date will constitute a default under this Agreement without any requirement of notice of or an opportunity to cure such failure. 4 3.4 Reporting Obligations. (a)Upon the entering into of major contracts for substantial portions of the Project and again upon substantial completion of the Project, the Developer hereby agrees to report to the Commission the number of local contractors and local laborers involved in the Project, the amount of bid awards for each major contract related to the Project, and information regarding which major contractor is awarded each contract with respect to the Project. For purposes hereof, “major contractor” or "major contract” shall mean any contract in excess of $500,000 or any contractor that is a party to any contract in excess of $500,000. (b)On or before June 30 and December 31 of each year until substantial completion of the Project, the Developer shall submit to the Commission a report, in the format set forth as Exhibit D, demonstrating the Developer’s good-faith compliance with the terms of this Agreement. The report shall include the following information and documents: (i) a status report of the construction/rehabilitation completed to date, (ii) an update on the project schedule, (iii) an itemized accounting generally identifying the Private Investment to date, and (iv) a status report of the number of jobs created for employment at the Developer Property. 3.5 Submission of Plans and Specifications for Project. The Plans and Specifications for the Project have been submitted to and approved by the Commission as of the date hereof, and any material changes thereto from and after the date hereof shall be delivered to the City’s Executive Director Department of Community Investment, or his or her designee, who may approve or disapprove said material changes in his or her sole and reasonable discretion and may request reasonable revisions or amendments to be made to the same, in each instance subject to the rights of the Developer’s senior lenders; provided, however, that nothing herein shall limit or impair the City’s authority to enforce applicable laws, codes, permits, or requirements relating to public health, safety, access, or use of public rights-of-way. 3.6 Non-Interference. Developer hereby agrees to use commercially reasonable efforts to minimize disruption for those living at and working near the Developer Property during construction of the Project (recognizing that some level of disruption is inherent in construction activities, but not excusing Developer from its obligations under this Section). 3.7 Insurance. The Developer shall purchase and maintain comprehensive insurance coverage as is appropriate for the work being performed with respect to the Project. The Developer shall provide proof of such adequate insurance to the Commission and shall notify the Commission and the City of any change in or termination of such insurance. During the period of construction or provision of services regarding any Local Public Improvements, the Developer shall maintain insurance in the kinds and for at least the minimum amounts as described in Exhibit E attached hereto and the Commission and the City shall be named as additional insureds on such policies (but not on any worker’s compensation policies). Notwithstanding anything to the contrary contained in the loan documents, in the event of any fire 5 or other casualty to the Project or eminent domain proceedings resulting in condemnation of the Project, or any part thereof, Borrower shall have the right to rebuild the Project, and to use all available insurance or condemnation proceeds therefor, provided that (a) such proceeds are sufficient to keep the Loan in balance and rebuild the Project in a manner that provides adequate security to Lender for repayment of the Loan, or if such proceeds are insufficient then Borrower shall have funded any deficiency, (b) Lender shall have the right to approve plans and specifications for any major rebuilding and the right to approve disbursements of insurance or condemnation proceeds for rebuilding under a construction escrow or similar arrangement, and (c) no continuing material default then exists by Borrower under the loan documents. If the casualty or condemnation affects only part of the Project and total rebuilding is infeasible, then proceeds may be used for partial rebuilding and partial repayment of the Loan in a manner that provides adequate security to Lender for repayment of the remaining balance of the Loan. Notwithstanding the foregoing, any rebuilding or restoration of the Project shall, to the extent reasonably practicable and subject to the rights of the Developer’s senior lenders, be performed in a manner consistent in all material respects with the Project as approved under this Agreement (including the Project Plan), as such Project may be reasonably modified with the prior written approval of the City, which approval shall not be unreasonably withheld, conditioned, or delayed. 3.8 Information. The Developer agrees to provide any and all non-proprietary and non- confidential due diligence items with respect to the Project reasonably requested by the Commission. SECTION 4. COMMISSION’S OBLIGATIONS. 4.1 Generally. The Parties acknowledge and agree that the Developer’s agreement to perform and abide by the covenants and obligations set forth in this Agreement is material consideration for the Commission’s commitment to perform and abide by the covenants and obligations of the Commission contained in this Agreement. 4.2 Cooperation. The Commission agrees to endorse and support the Developer’s efforts to expedite the Project through any required planning, design, permitting, waiver, and related regulatory processes, provided, however, that the Commission will not be required to expend any money in connection therewith. 4.3 Public Announcements, Press Releases, and Marketing Materials. The Commission hereby agrees to coordinate all public announcements and press releases relating to the Project with the Developer. SECTION 5. COOPERATION IN THE EVENT OF LEGAL CHALLENGE. 5.1 Cooperation. In the event of any administrative, legal, or equitable action or other proceeding instituted by any person not a party to this Agreement challenging the validity of any provision of this Agreement, the Parties shall cooperate in defending such action or proceeding to settlement or final judgment including all appeals. Each Party shall select its own legal counsel; however, Developer shall reimburse the Commission for its reasonable attorneys’ fees associated with the Commission’s defense of this Agreement against a third-party lawsuit. In no event shall 6 the Commission be required to bear the fees and costs of the Developer’s attorneys. The Parties agree that if any other provision of this Agreement, or this Agreement as a whole, is invalidated, rendered null, or set aside by a court of competent jurisdiction, the Parties agree to be bound by the terms of this Section 5.1, which shall survive such invalidation, nullification, or setting aside. SECTION 6. DEFAULT. 6.1 Default. Any failure by either Party to perform any material term or provision of this Agreement, which failure continues uncured for a period of thirty (30) days following receipt of written notice of such failure from the other Party or for such longer period as the Commission may agree to in writing; provided, that if the failure is of such nature that it can be corrected but not within the applicable period, that failure shall not constitute a default so long as the Developer institutes curative action within the applicable period and diligently pursues that action to completion, shall constitute a default under this Agreement. Any notice given pursuant to the preceding sentence shall specify the nature of the alleged failure and, where appropriate, the manner in which said failure satisfactorily may be cured. Upon the occurrence and continuance of a default under this Agreement that continues beyond all applicable notice and cure periods, the non-defaulting Party may (a) terminate this Agreement, or (b) institute legal proceedings at law or in equity (including any action to compel specific performance) seeking remedies for such default, provided that nothing herein shall limit the rights of the Developer’s senior lenders with respect to their collateral under the applicable loan documents, and further provided that the foregoing shall not limit or impair the City’s rights to enforce the obligations of this Agreement against the Developer. If the default is cured within the notice and cure period described in this Section 6.1, then no default shall exist and the noticing Party shall take no further action. In the event that the Developer fails (a) to complete the Project substantially in accordance with the terms hereof by the Mandatory Project Completion Date, or (b) to expend the full amount of the Private Investment necessary to complete the Project by the Mandatory Project Completion Date, Developer will be considered in default, and the Developer will be required to repay the Funding Amount received in accordance with the terms of the Loan Agreement. Borrower’s investor member shall have the right, but not the obligation, to cure any default by Borrower under the loan documents, and City agrees to accept any such cure tendered by Borrower’s investor member within any applicable grace period or cure period available to Borrower. 6.2 Force Majeure. Notwithstanding anything to the contrary contained in this Agreement, none of the Parties shall be deemed to be in default where delays in performance or failures to perform are due to, and a necessary outcome of, war, insurrection, strikes or other labor disturbances, walk-outs, riots, floods, earthquakes, fires, casualties, acts of God, acts of terrorism, restrictions imposed or mandated by governmental entities, pandemics, epidemics, enactment of conflicting state or federal laws or regulations, new or supplemental environments regulations, contract defaults by third parties, or similar basis for excused performance which is not within the reasonable control of the Party to be excused (each, an event of “Force Majeure”). Upon the request of any of the Parties, a reasonable extension of any date or deadline set forth in this Agreement due to such cause will be granted in writing for a period necessitated by the event of Force Majeure, or longer as may be mutually agreed upon by all the Parties. 7 SECTION 7. NO AGENCY, JOINT VENTURE, OR PARTNERSHIP; CONFLICT OF INTEREST; INDEMNITY. 7.1 No Agency, Joint Venture or Partnership. The Parties acknowledge and agree that: (a) The Project is a private development; (b)The Commission shall have no ownership interest in, or responsibility or liability with respect to the Project or any improvements constructed in connection therewith, and the Developer shall be solely responsible for all such improvements and any obligations to third parties arising therefrom; and (c) The Parties hereby renounce the existence of any form of agency relationship, joint venture, or partnership between the Commission and the Developer and agree that nothing contained herein or in any document executed in connection herewith shall be construed as creating any such relationship between the Commission and the Developer. 7.2 Conflict of Interest; Commission Representatives Not Individually Liable. No member, official, or employee of the Commission or the City may have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official, or employee participate in any decision relating to this Agreement which affects his or her personal interests or the interests of any corporation, partnership, or association in which he or she is, directly or indirectly, interested. No member, official, or employee of the Commission or the City shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the Commission or for any amount which may become due to the Developer, or its successors and assigns, or on any obligations under the terms of this Agreement. No partner, member, employee, or agent of the Developer or successors of them shall be personally liable to the Commission under this Agreement. 7.3 Indemnity. The Developer agrees to indemnify, defend, and hold harmless the Commission and the City from and against any third-party claims suffered by the Commission or the City resulting from or incurred in connection with the Project, provided, however, that the Developer shall have no responsibility hereunder with respect to and liability or claims suffered by the Commission or the City due to their own willful misconduct or gross negligence, nor shall the Developer have any liability hereunder with respect to any claims or liability that arises from actions that first occur after the Developer is no longer in possession of the Project, except to the extent arising from the acts or omissions of the Developer or its contractors. SECTION 8. MISCELLANEOUS. 8.1 Severability. If any term or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining terms and provisions of this Agreement shall continue in full force and effect unless amended or modified by mutual consent of the parties. 8.2 Waiver. Neither the failure nor any delay on the part of a Party to exercise any right, remedy, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall 8 any single or partial exercise of any right, remedy, power, or privilege preclude any other or further exercise of the same or of any right, remedy, power, or privilege with respect to any occurrence be construed as a waiver of any such right, remedy, power, or privilege with respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver. 8.3 Other Necessary Acts. Each Party shall execute and deliver to the other Parties all such other further instruments and documents as may be reasonably necessary to accomplish the Project and the Local Public Improvements contemplated by this Agreement and to provide and secure to the other Parties the full and complete enjoyment of its rights and privileges hereunder. Notwithstanding the foregoing, the Parties understand and agree that certain actions contemplated by this Agreement may be required to be undertaken by persons, agencies, or entities that are not a party to this Agreement, including, but not limited to certain permits, consents, and/or approvals (to the extent they have not yet been obtained and completed), and that any action by such third parties shall require independent approval by the respective person, agency, entity, or governing body thereof. 8.4 Dispute Resolution; Waiver of Jury Trial. Any action to enforce the terms or conditions of this Agreement or otherwise concerning a dispute under this Agreement will be commenced in the courts of St. Joseph County, Indiana, unless the Parties mutually agree to an alternative method of dispute resolution. The Parties acknowledge that disputes arising under this Agreement are likely to be complex and they desire to streamline and minimize the cost of resolving such disputes. In any legal proceeding, each Party irrevocably waives the right to trial by jury in any action, counterclaim, dispute, or proceeding based upon, or related to, the subject matter of this Agreement. This waiver applies to all claims against all parties to such actions and proceedings. This waiver is knowingly, intentionally, and voluntarily made by both Parties. 8.5 Attorneys’ Fees. In the event the Commission pursues any legal action (including arbitration) to enforce or interpret this Agreement and the Commission prevails, Developer shall pay Commission’s reasonable attorneys’ fees and other costs and expenses (including expert witness fees). 8.6 Equal Employment Opportunity. The Developer, for itself and its successors and assigns, agrees that during the construction of the Project: (a) The Developer will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The Developer agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause; and (b)The Developer will state, in all solicitations or advertisements for employees placed by or on behalf of the Developer, that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin. 8.7 Counterparts. This Agreement may be executed in separate counterparts, each of which when so executed shall be an original, but all of which together shall constitute one and the 9 same instrument. Any electronically transmitted version of a manually executed original shall be deemed a manually executed original. 8.8 Notices and Demands. Any notice, demand, or other communication required or permitted under the terms of this Agreement may be delivered (a) by hand-delivery (which will be deemed delivered at the time of receipt), (b) by registered or certified mail, return receipt requested (which will be deemed delivered three (3) days after mailing), or (c) by overnight courier service (which will be deemed delivered on the next business day) to each Party’s respective addresses and representatives stated below. Developer: Beacon Apartments Preservation LLC 2 Park Avenue, 23rd Floor New York, New York 10016 Attention: Jeffrey Moelis and Adam Hellegers, Esq. Email: jmoelis@lmdp.com and ahellegers@lmdp.com With a copy to: Cohen Liuzzo PLLC 88 Pine Street, Suite 1430 New York, New York 10005 Attention: Anthony Bargnesi, Esq. and Eleor Cohen, Esq. Email: abargnesi@cohenliuzzo.com and ecohen@cohenliuzzo.com Commission: South Bend Redevelopment Commission 215 S. Dr. Martin Luther King Jr., Blvd., Suite 500 South Bend, IN 46601 Attn: Executive Director, Department of Community Investment With a copy to: South Bend Legal Department 215 S. Dr. Martin Luther King Jr., Blvd., Suite 600 South Bend, IN 46601 Attn: Corporation Counsel Investor Member: Cinnaire Fund for Housing Limited Partnership 45 c/o Cinnaire 45, LLC 1118 South Washington Lansing, Michigan48910 With a copy to: Kutak Rock LLP 1650 Farnam Street Omaha, NE 68102 Attn: Asher R. Ball 10 8.9 Governing Law. This Agreement is governed by and construed in accordance with the laws of the State of Indiana. 8.10 Authority. Each undersigned person executing and delivering this Agreement on behalf of a Party represents and certifies that he or she is the duly authorized officer or representative of such Party, that he or she has been fully empowered to execute and deliver this Agreement on behalf of such Party, and that all necessary action to execute and deliver this Agreement has been taken by such Party. 8.11 No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended or shall be construed to confer upon any person, firm, or corporation other than the Parties hereto and their respective successors or assigns, any remedy or claim under or by reason of this Agreement or any term, covenant, or condition hereof, as third-party beneficiaries or otherwise, and all of the terms, covenants, and conditions hereof shall be for the sole and exclusive benefit of the Parties herein. 8.12 Assignment. The Developer’s rights under this Agreement shall be personal to the Developer and shall not run with the land. The Developer may not assign its rights or obligations under this Agreement to any third party without obtaining the Commission’s prior written consent to such assignment, which the Commission may give or withhold in its sole discretion. In the event the Developer seeks the Commission’s consent to any such assignment, the Developer shall provide to the Commission all relevant information concerning the identities of the persons or entities proposed to be involved in and an explanation of the purposes for the proposed assignment(s). 8.13 Further Assurances. The Parties agree that they will each undertake in good faith, as permitted by law, any action and execute and deliver any document reasonably required to carry out the intents and purposes of this Agreement. 8.14 Exhibits. All exhibits described herein and attached hereto are incorporated into this Agreement by reference. 8.15 Entire Agreement. No representation, promise, or inducement not included in this Agreement will be binding upon the Parties hereto. This Agreement cannot be modified except by mutual agreement of the Parties set forth in a written instrument signed by the Parties’ authorized representatives. 8.16 Time. Time is of the essence of this Agreement. 8.17 Limitation of Liability. Notwithstanding anything contained herein to the contrary, the Parties hereby agree that (i) the obligations of the Developer hereunder shall not be recourse to the members, partners, shareholders, agents or employees of the Developer; (ii) no punitive, special, speculative, loss of profit or consequential damages shall be awarded in any suit, action or other proceeding arising out of or based upon this Agreement or the subject matter hereof, except as expressly provided in this Agreement, including any liquidated damages or repayment obligations; (iii) the Developer shall not be liable to the extent any liability hereunder arose from the fraud, gross negligence or willful misconduct of the City, Commission or any of their agents 11 and (iv) the Developer shall not be liable for any liability hereunder that first arises after the Developer is no longer in possession of the Project, except to the extent arising from the acts or omissions of the Developer or its contractors. 8.18 Subordination and No Limitation on Mortgagee or Financing Party. Any and all rights of the Commission and obligations and liabilities of the Developer under this Agreement and/or relating to the Loan (as defined in the Loan Agreement) shall be expressly subject and subordinate to any mortgage loans or other indebtedness incurred by the Developer with respect to the acquisition, construction, reconstruction and/or rehabilitation of the Project. Notwithstanding anything in this Agreement to the contrary, (a) no provision of this Agreement shall restrict or otherwise limit (i) any foreclosure by or other transfer of title to any mortgagee or financing party of the Project, or (ii) any transfer of ownership of any interest in the Developer to such mortgagee or financing party or any constituent owner of the Developer, and (b)in the event of any such foreclosure by or other transfer of title to any mortgagee or financing party, as permitted in clause (a)(i) above, any such mortgagee or financing party (or any party taking by, through or under any such mortgagee or financing party) shall take title to the Project free and clear of any responsibility, obligation and/or liability under this Agreement and/or the Loan (as defined in the Loan Agreement) with respect to matters arising prior to such transfer and without liability for the acts or omissions of the Developer, provided, however, that any such mortgagee or financing party (or transferee) shall, from and after acquiring title, be subject to the provisions of this Agreement applicable to the ownership, use, and operation of the Project. Signature Page Follows 12 IN WITNESS WHEREOF, the Parties hereby execute this Agreement to be effective as of the Effective Date stated above. SOUTH BEND REDEVELOPMENT COMMISSION ______________________________ David Relos, President ATTEST: ______________________________ Eli Wax, Secretary BEACON APARTMENTS PRESERVATION LLC an Indiana limited liability company By:______________________________ Name: Adam Hellegers Title: Authorized Signatory 13 EXHIBIT A Description of Developer Property State Parcel ID: 71-08-04-203-031.000-026 Tax ID/Local Parcel No.: 018-2193-7236 Legal Description: see below Commonly Known As: 3401 Ardmore Trail, South Bend, IN 46628 ALL THAT CERTAIN LOT, PIECE OR PARCEL OF LAND, WITH THE BUILDINGS AND IMPROVEMENTS THEREON ERECTED, SITUATE, LYING AND BEING IN THE CITY OF SOUTH BEND, COUNTY OF ST JOSEPH, STATE OF INDIANA. THAT PART OF THE NORTHEAST QUARTER OF SECTION 4, TOWNSHIP 37 NORTH, RANGE 2 EAST OF THE SECOND PRINCIPAL MERIDIAN, CITY OF SOUTH BEND, ST. JOSEPH COUNTY, INDIANA DESCRIBED AS FOLLOWS: BEGINNING AT A CONCRETE MONUMENT FOUND AT THE NORTHEAST CORNER OF LOT 77, BRENTWOOD ESTATES, FIRST ADDITION, SECTION B; THENCE NORTH 89° 49’ 39” WEST, 720.02 FEET TO AN IRON PIPE FOUND; THENCE NORTH 000 08’ 09” EAST 552.33 FEET TO AN IRON PIPE FOUND; THENCE SOUTH, 89° 45’ 23” EAST 253.28 FEET TO AN IRON PIPE FOUND; THENCE SOUTH 00° 03’ 36” WEST 68.80 FEET TO AN IRON PIPE FOUND; THENCE SOUTH 89° 47’ 28” EAST 213.85 FEET TO AN IRON PIPE FOUND; THENCE NORTH 00° 17’ 11” EAST 68.74 FEET TO AN IRON PIPE FOUND; THENCE SOUTH 89° 47’ 48” EAST 253.15 FEET TO AN IRON PIPE FOUND; THENCE SOUTH 00° 07’ 04” WEST 88.64 FEET TO A CONCRETE MONUMENT FOUND; THENCE NORTH 89° 59’ 40” EAST 736.67 FEET TO A RE-BAR FOUND; THENCE CONTINUING NORTH 89° 59’ 40” EAST 31.00 FEET; THENCE SOUTH 00° 24’ 47” WEST 596.92 FEET TO A CONCRETE MONUMENT FOUND; THENCE CONTINUING SOUTH 00° 24’ 47” WEST, 32.80 FEET TO THE CENTER LINE OF ARDMORE TRAIL (ALSO KNOWN AS CRUMSTOWN AVE.), 60.00 FEET RIGHT-OF-WAY; THENCE SOUTH 66° 33’ 51” WEST, ALONG THE CENTER LINE OF SAID ARDMORE TRAIL, 835.40 FEET; THENCE NORTH 00° 11’ 44” EAST, 498.85 FEET, TO THE POINT OF BEGINNING. EXCEPTING THEREFROM THE FOLLOWING DESCRIBED LAND: A TRACT OF LAND LOCATED IN THE NORTHEAST QUARTER OF SECTION 4, TOWNSHIP 37 NORTH, RANGE 2 EAST, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT A POINT WHICH IS THE INTERSECTION OF THE SOUTHERLY LINE OF LINCOLN WAY WEST AND THE WEST LINE OF A RIGHT-OF-WAY 19 FEET IN WIDTH AS DEDICATED IN THE RECORDED PLAT OF ALWARD’S ADDITION TO THE CITY OF SOUTH BEND; THENCE SOUTH ALONG THE WEST LINE OF SAID 19 FOOT RIGHT-OF-WAY A DISTANCE OF 633.09 FEET TO THE POINT OF BEGINNING, WHICH IS THE NORTHEAST CORNER OF BEACON HEIGHTS ADDITION; THENCE CONTINUING SOUTH ALONG THE WEST LINE OF SAID 19 FOOT RIGHT-OF-WAY, A 14 DISTANCE OF 330 FEET; THENCE WEST ALONG A LINE AT RIGHT ANGLES TO THE LINE JUST DESCRIBED A DISTANCE OF 21 FEET; THENCE NORTH AND PARALLEL TO SAID RIGHT-OF-WAY TO THE NORTH LINE OF SAID BEACON HEIGHTS; THENCE EAST ALONG THE NORTH LINE OF SAID BEACON HEIGHTS, 21 FEET TO THE POINT OF BEGINNING. 15 EXHIBIT B Project Plan The Developer will complete the following work substantially in accordance with the terms and conditions of this Agreement and in material compliance with all applicable laws and regulations: The Developer shall renovate and rehabilitate one hundred seventy-four (174) affordable rental housing units and maintain all required affordability restrictions applicable to the rental housing units. The renovation of each rental housing unit shall be deemed complete upon the issuance of a Permanent Certificate of Occupancy pertaining to that unit. 16 EXHIBIT C Description of Local Public Improvements Local Public Improvements will include improvements in support of the rehabilitation of the Project, including, without limitation, those costs financed with proceeds of the Loan (as defined in the Loan Agreement) undertaken in furtherance of the Project, as agreed upon between the Parties, in material compliance with all applicable laws and regulations. The Developer shall have the sole responsibility to fund any and all costs associated with Local Public Improvements that exceeds the Funding Amount. 17 EXHIBIT D Form of Report to Commission City of South Bend Department of Community Investment Answer the below questions and return to the Department of Community Investment. Project Information Project Name: __________________________________________________________________ Address: _______________________________________________________________________ Construction Completed to Date: Project Schedule Update: Itemized Accounting of Private Investment to Date: Number of Jobs Created: Name: _______________________________________ Address: _______________________________________ _______________________________________ Position: _______________________________________ Email: _______________________________________ Signature: _______________________________________ Date: ___________________ Development Agreement Review EXHIBIT E Minimum Insurance Amounts A.Worker’s Compensation 1.State Statutory 2.Applicable Federal Statutory 3. Employer’s Liability $100,000.00 B.Comprehensive General Liability and/or Excess Coverage 1. Bodily Injury a.$5,000,000.00 Each Occurrence b. $5,000,000.00 Annual Aggregate Products and Completed Operation 2.Property Damage a.$5,000,000.00 Each Occurrence b. $5,000,000.00 Annual Aggregate C.Comprehensive Automobile Liability 1. Bodily Injury a.$500,000.00 Each Person b. $500,000.00 Each Accident 2.Property Damage a.$500,000.00 Each Occurrence RESOLUTION NO. 3675 A RESOLUTION OF THE SOUTH BEND REDEVELOPMENT COMMISSION APPROPRIATING CERTAIN FUNDS IN CONNECTION WITH A DIRECT LOAN TO THE DEVELOPER OF AN ECONOMIC DEVELOPMENT FACILITY (BEACON HEIGHTS PROJECT) WHEREAS, the South Bend Redevelopment Commission (the “Commission”), the governing body of the South Bend Department of Redevelopment and the Redevelopment District of the City of South Bend, Indiana (the “District”), exists and operates under the provisions of Indiana Code 36-7-14, as amended from time to time (the “Act”); and WHEREAS, the Commission is committed to improving the City of South Bend, Indiana (the “City”) by administering and funding projects that support economic development, public infrastructure, and neighborhood revitalization; and WHEREAS, the Commission has previously adopted a declaratory resolution, as subsequently confirmed and amended, which (i) declared the River West Development Area (the “River West Development Area”) as an economic development area pursuant to Section 41 of the Act, (ii) designated the River West Development Area as an allocation area pursuant to Section 39 of the Act (the “River West Allocation Area”), for the purpose of capturing property tax proceeds derived from incremental assessed valuation of real property in such allocation area which is in excess of the “base assessed value” (such property tax proceeds, hereinafter referred to as “River West TIF Revenues”), (iii) created the River West Allocation Area Fund into which all River West TIF Revenues are deposited, all pursuant to and as described in Section 39 of the Act, and (iv) approved an economic development plan for the River West Development Area; and WHEREAS, Beacon Apartments Preservation LLC, an Indiana limited liability company (the “Developer”), has informed the City that it desires to construct, renovate and/or rehabilitate certain economic development facilities within the City which will consist of up to one hundred seventy-four (174) affordable housing rental units in the existing Beacon Heights development in the River West Development Area in the City, with an approximate total redevelopment cost of Forty-Seven Million Dollars ($47,000,000) including a private investment of no less than Forty- Seven Million Dollars ($47,000,000) to be expended by the Developer, on certain parcels of real property which are located in or physically connected to, and will directly serve and benefit, the River West Development Area and the River West Allocation Area (collectively, the “Project”), and has requested that the City make a loan to the Developer for the purposes of financing or reimbursing the Developer for a portion of the costs of construction, renovation and/or rehabilitation of the Project; and WHEREAS, the Common Council of the City adopted its loan ordinance (the "Loan Ordinance") on June 22, 2026, which Loan Ordinance authorizes the issuance and funding of a forgivable loan from the City to the Developer (the “Loan”) in the total aggregate principal amount not to exceed One Million Two Hundred Fifty Thousand Dollars ($1,250,000) to finance a portion of the Project; 2 WHEREAS, the Commission previously adopted its Resolution No. 3672 on June 11, 2026, determining, subject to appropriation thereof by the Commission, to make available the River West TIF Revenues to simultaneously reimburse the City for its costs incurred to fund the Loan to the Developer with respect to the Project; and WHEREAS, the Commission now desires to appropriate an amount not to exceed One Million Two Hundred Fifty Thousand Dollars ($1,250,000) consisting of River West TIF Revenues to fund the Loan to the Developer with respect to the Project; and WHEREAS, notice of a hearing on said appropriation has been filed with the Indiana Department of Local Government Finance through its Gateway system as required by Indiana law and on this date a public hearing has been conducted regarding such appropriation; NOW, THEREFORE, BE IT RESOLVED BY THE SOUTH BEND REDEVELOPMENT COMMISSION, AS FOLLOWS: SECTION 1. An appropriation in an amount not to exceed One Million Two Hundred Fifty Thousand Dollars ($1,250,000) is hereby made for the purpose of simultaneously reimbursing the City for expenditures made, or to be made, by the City to fund the Loan to the Developer with respect to the Project, and the funds to meet this appropriation will be provided out of the River West TIF Revenues collected in the River West Allocation Area. Said appropriation shall be in addition to all other appropriations provided for in the existing budget and tax levy. SECTION 2. The officers of the Commission and the Controller of the City are hereby directed to make any and all required filings, if any, with the Department of Local Government Finance in connection with this resolution. SECTION 3. The President, Vice President or any other officer or member of the Commission is hereby authorized to take all such actions and to execute all such instruments as are desirable to carry out the transactions contemplated by this resolution, in such forms as such officer or member executing the same shall deem proper, to be conclusively evidenced by the execution thereof. SECTION 4. This Resolution shall be in full force and effect from and after its passage. ADOPTED at a meeting of the South Bend Redevelopment Commission held on July 9, 2026, in the City Hall Council Chambers, 3rd Floor, 215 S. Dr. Martin Luther King, Jr., Boulevard, South Bend, Indiana, 46601. SOUTH BEND REDEVELOPMENT COMMISSION By: David Relos, President ATTEST: Eli Wax, Secretary DMS 53323517v1